<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 8, 1995.
REGISTRATION NO. 33-57353
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DEAN FOODS COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization)
36-0984820
(I.R.S. Employer
Identification No.)
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3600 North River Road
Franklin Park, IL 60131
(708) 678-1680
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Eric A. Blanchard
3600 N. River Road
Franklin Park, IL 60131
(708) 678-1680
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
H. Kurt von Moltke Kevin F. Blatchford
Kirkland & Ellis Sidley & Austin
200 East Randolph Drive One First National Plaza
Chicago, IL 60601 Chicago, IL 60603
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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*SUBJECT TO COMPLETION*
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OR AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION DATED MARCH 8, 1995
PROSPECTUS
$300,000,000
DEAN FOODS COMPANY
DEBT SECURITIES
------------------------------
Dean Foods Company (the "Company") intends to issue from time to time
senior debt securities (the "Senior Securities") and/or subordinated debt
securities (the "Subordinated Securities") each of which will be a direct,
unsecured obligation of the Company for aggregate proceeds not to exceed the
equivalent of $300,000,000 and offered to the public on terms determined by
market conditions at the time of sale (the Senior Securities and the
Subordinated Securities being herein referred to collectively as the "Debt
Securities"). The Debt Securities may be denominated in U.S. dollars or in any
other currency, including composite currencies such as the European Currency
Unit, as may be designated by the Company (the "Specified Currency"). Debt
Securities may be sold for U.S. dollars or any other currency, including
composite currencies and the principal of and any interest on Debt Securities
may be payable in U.S. dollars, or in any other currency, including composite
currencies, in each case, as the Company specifically designates.
The Debt Securities may be issued in one or more series with the same or
various maturities at or above par or with an original issue discount. The
specific designation, aggregate principal amount, authorized denominations,
purchase price, maturity, interest rate (or method of calculation) and time of
payment of any interest, any terms for redemption or repurchase, any listing on
a securities exchange or other specific terms of the Debt Securities in respect
of which this Prospectus is being delivered (the "Offered Securities") are set
forth in the accompanying supplement to the Prospectus (the "Prospectus
Supplement"), together with the terms of offering of the Offered Securities.
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------------
The Debt Securities may be offered directly, through agents designated from
time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan of
Distribution." Any such agents, dealers or underwriters are set forth in the
Prospectus Supplement. If an agent of the Company or a dealer or underwriter is
involved in the offering of the Offered Securities, the agent's commission,
dealer's purchase price, underwriter's discount and net proceeds to the Company
will be set forth in, or may be calculated from, the Prospectus Supplement. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
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The date of this Prospectus is March , 1995.
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IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS FOR SUCH OFFERING MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE DEBT SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained or incorporated by
reference in this Prospectus or any Prospectus Supplement, and, if given or
made, such information or representation must not be relied upon as having been
authorized by the Company or by any underwriter, agent or dealer. This
Prospectus and any Prospectus Supplement shall not constitute an offer to sell
or a solicitation of an offer to buy any of the securities offered hereby in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the delivery of this Prospectus and
any Prospectus Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that the information therein is correct as
of any time subsequent to the date thereof.
-------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy material and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy material
and other information concerning the Company can be inspected and copied at the
public reference facilities maintained by the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, or at its regional offices, at 500
West Madison, 14th Floor, Chicago, Illinois 60661, and Seven World Trade Center,
New York, New York 10048. Copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such reports, proxy material and
other information concerning the Company also may be inspected at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Debt Securities. This Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits thereto as permitted by the rules and regulations of the
Commission. For information with respect to the Company and the Debt Securities,
reference is hereby made to the Registration Statement and the exhibits thereto.
The Registration Statement may be inspected without charge by anyone at the
office of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and
copies of all or any part thereof may be obtained from the Commission upon
payment of the prescribed fees. Statements contained in this Prospectus as to
the contents of any contract or other document are not necessarily complete, and
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement of which this Prospectus forms a part,
each such statement being qualified in all respects by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed by the Company under the Exchange
Act with the Commission are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended May
29, 1994.
(2) The Company's Report on Form 8-K dated June 20, 1994.
(3) The Company's Quarterly Reports on Form 10-Q for the thirteen week
period ended August 28, 1994 and the twenty-six week period ended
November 27, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of Debt Securities
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contemplated hereby shall be deemed to be incorporated in this Prospectus by
reference and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated in this Prospectus by reference other than exhibits to
such documents. Requests for such copies should be directed to the Corporate
Secretary, Dean Foods Company, 3600 North River Road, Franklin Park, Illinois
60131, telephone number (708) 678-1680.
Unless the context indicates otherwise, as used in this Prospectus the term
"Company" refers to Dean Foods Company and its consolidated subsidiaries. The
Company's fiscal year ends on the last Sunday in May. Unless the context
indicates otherwise, references herein to years are for years ending on that
date.
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THE COMPANY
Dean Foods Company and its subsidiaries are engaged in the processing,
purchasing and distribution of dairy and specialty food products. The Company's
principal products are Dairy Products (fluid milk, specialty dairy products and
ice cream) and Specialty Food Products (canned and frozen vegetables; pickles,
relishes and specialty items; powdered products; and sauces, puddings and dips).
A significant portion of the Company's products are sold under private labels.
The Company also operates a trucking business hauling less-than-truckload
freight, concentrating primarily on refrigerated and frozen cartage.
Acquisitions have been an important factor in the Company's strategy. The
Company generally focuses on food companies having a well-established reputation
for quality products and service.
The predecessor to the Company was incorporated in Illinois in 1925. The
principal office of the Company is located at 3600 North River Road, Franklin
Park, Illinois 60131, and its telephone number is (708) 678-1680.
USE OF PROCEEDS
The Company intends to use the net proceeds of the offering of the Debt
Securities for general corporate purposes, which may include repaying existing
indebtedness or financing acquisitions. Further details relating to the use of
the net proceeds will be set forth in the applicable Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated.
<TABLE>
<CAPTION>
TWENTY-SIX WEEKS FISCAL YEARS
ENDED ------------------------------------------------
NOVEMBER 27, 1994 1994 1993 1992 1991 1990
- ----------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
5.5x 6.2x 6.1x 5.3x 5.9x 5.8x
</TABLE>
For the purpose of computing the above ratio of earnings to fixed charges,
earnings consist of income before taxes, plus fixed charges. Fixed charges
consist of interest expense, net, including amortization of discount and
financing costs and one-third of the operating rental expenses which management
believes is representative of the interest component of rent expense.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Securities") and the extent,
if any, to which such general provisions may not apply thereto will be described
in the Prospectus Supplement relating to such Offered Securities.
The Senior Securities are to be issued in one or more series (each such
series a "Series") under an Indenture dated as of January 15, 1995, (the "Senior
Indenture") between the Company and Bank of America Illinois, as Trustee (the
"Senior Trustee"), and the Subordinated Securities are to be issued in one or
more Series under an Indenture dated as of January 15, 1995 (the "Subordinated
Indenture") between the Company and a trustee to be named prior to an offering
of Subordinated Securities, as Trustee (the "Subordinated Trustee"). The forms
of the Senior Indenture and the Subordinated Indenture (being sometimes referred
to herein collectively as the "Indentures" and individually as an "Indenture")
are filed as exhibits to the Registration Statement. The following summaries of
certain provisions of the Debt Securities and the Indentures do not purport to
be complete and are subject to, and are qualified in their entireties by
reference to, all of the provisions of the Indentures, including the definitions
therein of certain terms. Whenever particular provisions or defined terms in the
Indentures are referred to herein, such provisions or defined terms are
incorporated by reference herein. Section references used herein are references
to sections in
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both Indentures unless otherwise indicated. The Indentures are substantially
identical, except for certain covenants of the Company and provisions relating
to subordination.
The Debt Securities will be obligations of the Company exclusively. Because
the Company conducts substantially all of its business through its subsidiaries,
the ability of the Company to meet its obligations under the Debt Securities and
its other indebtedness will be dependent on the earnings and cash flow of its
subsidiaries and the ability of its subsidiaries to pay dividends and to advance
funds to the Company. In addition, the Company's rights and the rights of its
creditors and securities holders, including the holders of the Debt Securities,
to participate in the assets of any subsidiary upon such subsidiary's
liquidation or recapitalization will be subject to prior claims of such
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against any such subsidiary. Except with respect
to the covenants "Limitations on Liens" and "Limitations on Sale and Lease-Back
Transactions" contained in the Senior Indenture described below, neither the
Senior Indenture nor the Subordinated Indenture restricts or limits the ability
of any subsidiary of the Company to incur, create, assume or guarantee
indebtedness. At November 27, 1994, the Company's subsidiaries had approximately
$25 million of outstanding indebtedness, approximately $19 million of which was
guaranteed by the Company and would have constituted Senior Indebtedness.
As of November 27, 1994, the Company had approximately $142 million
aggregate principal amount of Senior Indebtedness outstanding and no
subordinated indebtedness outstanding.
The Prospectus Supplement will contain any additional or revised
information with respect to the senior and subordinated debt outstanding as of
the date of the Prospectus Supplement.
GENERAL
The Indentures do not limit the amount of Debt Securities which can be
issued thereunder and provide that debt securities of any Series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. Debt Securities may be denominated and payable in
foreign currencies or units based on or relating to foreign currencies,
including European Currency Units ("ECUs"). Special United States federal income
tax considerations applicable to any Debt Securities so denominated will be
described in the relevant Prospectus Supplement. The Indentures do not limit the
amount of other indebtedness or securities, other than in the case of the Senior
Indenture certain secured indebtedness as described below, which may be issued
by the Company. All Senior Securities will be unsecured and will rank pari passu
with all other unsecured and unsubordinated indebtedness of the Company. All
Subordinated Securities will be unsecured and will be subordinated in right of
payment to the prior payment in full of Senior Indebtedness (which term includes
the Senior Securities) of the Company described below under "Subordination." The
Trustee will authenticate and deliver Debt Securities executed and delivered to
it by the Company as set forth in the applicable Indenture.
Reference is made to the Prospectus Supplement for the following and other
possible terms of each Series of the Offered Securities in respect of which this
Prospectus is being delivered: (i) the title of the Offered Securities and
classification as Senior Securities or Subordinated Securities; (ii) any limit
upon the aggregate principal amount of the Offered Securities; (iii) the
currency or currency units based on or relating to currencies in which such
Offered Securities are denominated and/or in which principal (and premium, if
any) and/or any interest will or may be payable; (iv) if other than 100% of the
principal amount, the percentage of their principal amount at which the Offered
Securities will be offered; (v) the date or dates on which the principal of the
Offered Securities will be payable (or method of determination thereof); (vi)
the rate or rates (or method of determination thereof) at which the Offered
Securities will bear interest, if any, the date or dates from which any such
interest will accrue and on which such interest will be payable, and the record
dates for the determination of the holders to whom interest is payable; (vii) if
other than as set forth herein, the place or places where the principal of and
interest, if any, on the Offered Securities will be payable; (viii) the price or
prices at which, the period or periods within which and the terms and conditions
upon which Offered Securities may be redeemed, in whole or in part, at the
option of the Company; (ix) the obligation, if any, of the Company to redeem,
repurchase or repay Offered Securities, whether pursuant to any sinking fund
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or analogous provisions or pursuant to other provisions set forth therein or at
the option of a Holder thereof; (x) whether the Offered Securities will be
represented in whole or in part by one or more global notes registered in the
name of a depository or its nominee; (xi) whether the Offered Securities will be
issuable in registered form or bearer form and, if Offered Securities in bearer
form are issuable, restrictions applicable to the exchange of one form for
another and to the offer, sale and delivery of Offered Securities in bearer
form; (xii) whether and under what circumstances the Company will pay additional
amounts on Offered Securities held by a person which is not a U.S. person (as
defined in the Prospectus Supplement) in respect of any tax, assessment or
governmental charge withheld or deducted, and if so, whether the Company will
have the option to redeem such Debt Securities rather than pay such additional
amounts; and (xiii) any other terms or conditions not inconsistent with the
provisions of the Indenture upon which the Offered Securities will be offered.
(Section 2.3) "Principal" when used herein includes, when appropriate, the
premium, if any, on the Debt Securities.
Unless otherwise provided in the Prospectus Supplement relating to any
Offered Securities, principal and interest, if any, will be payable, and the
Debt Securities will be transferable and exchangeable, at the office or offices
or agency maintained by the Company for such purposes, provided that payment of
interest on the Debt Securities will be paid at such place of payment by check
mailed to the persons entitled thereto at the addresses of such persons
appearing on the Security Register. Interest on the Debt Securities will be
payable on any interest payment date to the persons in whose name the Debt
Securities are registered at the close of business on the record date with
respect to such interest payment date. (Section 2.7)
Debt Securities may be issued in fully registered form in minimum
denominations of $1,000 and any integral multiple thereof. (Section 2.7) Debt
Securities may be exchanged for an equal aggregate principal amount of Debt
Securities of the same Series and date of maturity in such authorized
denominations as may be requested upon surrender of the Debt Securities at an
agency of the Company maintained for such purpose and upon fulfillment of all
other requirements of such agent. (Section 2.8) No service charge will be made
for any transfer or exchange of the Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Section 2.8) Debt Securities in bearer form
and the coupons, if any, appertaining thereto will be transferable by delivery.
(Section 2.8)
Debt Securities will bear interest at a fixed rate (a "Fixed Rate
Security") or a floating rate (a "Floating Rate Security"). Debt Securities
bearing no interest or interest at a rate which, at the time of issuance, is
below the prevailing market rate, will be sold at a discount below their stated
principal amount. Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at a discount for United
States federal income tax purposes will be described in the applicable
Prospectus Supplement.
Debt Securities may be issued, from time to time, with the principal amount
payable on any principal payment date, or the amount of interest payable on any
interest payment date, to be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors. Holders of
such Debt Securities may receive a principal amount on any principal payment
date, or a payment of interest on any interest payment date, that is greater
than or less than the amount of principal or interest otherwise payable on such
dates, depending upon the value on such dates of the applicable currency,
commodity, equity index or other factor. Information as to the methods for
determining the amount of principal or interest payable on any date, the
currencies, commodities, equity indices or other factors to which the amount
payable on such date is linked and certain additional tax considerations will be
set forth in the applicable Prospectus Supplement.
The Indenture requires the annual filing by the Company with the Trustee of
a certificate as to compliance with all conditions and covenants contained in
the Indenture. (Section 3.4)
The Company will comply with Section 14(e) under the Exchange Act, and any
other tender offer rules under the Exchange Act which may then be applicable, in
connection with any obligation of the Company to purchase Offered Securities at
the option of the holders thereof. Any such obligation applicable to a Series of
Debt Securities will be described in the Prospectus Supplement relating thereto.
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Unless otherwise described in a Prospectus Supplement relating to any
Offered Securities, there are no covenants or provisions contained in either
Indenture which may afford the holders of Offered Securities protection in the
event of a highly leveraged transaction involving the Company, except to the
limited extent described under "Limitations on Liens" and "Limitation on Sale
and Lease-Back Transactions" in the Senior Indenture and "Consolidation, Merger,
Sale or Conveyance" in the Indentures as described below. Such covenants or
provisions are not subject to waiver by the Company's Board of Directors without
the consent of the holders of not less than a majority in principal amount of
Senior Securities of each Series or Subordinated Securities of each Series, as
applicable, as described under "Modification of Indenture" below.
REGISTERED GLOBAL SECURITIES
The registered Debt Securities of a Series may be issued in the form of one
or more fully registered global Debt Securities (a "Registered Global Security")
that will be deposited with a depositary (the "Depositary"), or with a nominee
for a Depositary identified in the Prospectus Supplement relating to such
Series. In such cases, one or more Registered Global Securities will be issued
in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of outstanding registered Debt Securities of the
Series to be represented by such Registered Global Security or Securities.
Unless and until it is exchanged in whole or in part for Debt Securities in
definitive registered form, a Registered Global Security may not be transferred
except as a whole by the Depositary for such Registered Global Security to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a Series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such Series.
The Company anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Registered Global Security, the Depositary for such
Registered Global Security will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Debt Securities
represented by such Registered Global Security to the accounts of persons that
have accounts with such Depositary ("participants"). The accounts to be credited
shall be designated by any underwriters or agents participating in the
distribution of such Debt Securities or by the Company if such Debt Securities
are offered and sold directly by the Company. Ownership of beneficial interests
in a Registered Global Security will be limited to participants or persons that
may hold interests through participants. Ownership of beneficial interests in
such Registered Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the Depositary
for such Registered Global Security (with respect to interests of participants)
or by participants or persons that hold through participants (with respect to
interests of persons other than participants). The laws of some states require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Registered Global Security.
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global Security for all
purposes under the Indenture. Except as set forth below, owners of beneficial
interests in a Registered Global Security will not be entitled to have the Debt
Securities represented by such Registered Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the Indenture.
Principal and interest payments on Debt Securities represented by a
Registered Global Security registered in the name of a Depositary or its nominee
will be made to such Depositary or its nominee, as the case may be, as the
registered owner of such Registered Global Security. None of the Company, the
Trustee or any paying agent for such Debt Securities will have any
responsibility or liability for any aspect of the records to or payments made on
account of beneficial ownership interests in such Registered Global Security or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
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The Company expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal or
interest, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Registered Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interest in such Registered Global Security held through such
participants will be governed by standing instructions and customary practices,
as is now the case with the securities held for the accounts of customers
registered in "street names," and will be the responsibility of such
participants.
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary and
a successor Depositary is not appointed by the Company within ninety days or an
Event of Default has occurred and is continuing with respect to such Debt
Securities, the Company will issue such Debt Securities in definitive form in
exchange for such Registered Global Security. In addition, the Company may at
any time and in its sole discretion determine not to have the Debt Securities of
a Series represented by one or more Registered Global Securities and, in such
event, will issue Debt Securities of such Series in definitive form in exchange
for the Registered Global Securities or Securities representing such Debt
Securities. (Section 2.8)
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Limitations on Liens
The Senior Indenture provides that, so long as any of the Senior Securities
of a Series remain outstanding, unless the terms of any Series of Senior
Securities provide otherwise, the Company will not and will not permit any
Consolidated Subsidiary to issue, assume or guarantee any indebtedness for money
borrowed ("Indebtedness") secured by a mortgage, pledge, security interest or
other lien (a "Lien") upon or with respect to any Principal Property or on the
capital stock of any Consolidated Subsidiary that owns a Principal Property
unless (a) the Company makes effective provision pursuant to which the Senior
Securities shall be secured by such Lien equally and ratably with any and all
other obligations and Indebtedness thereby secured, or (b) the aggregate amount
of all such Indebtedness secured by such a Lien on the Company and its
Consolidated Subsidiaries then outstanding, together with all Attributable Debt
in respect of sale and lease-back transactions existing at such time (with the
exception of transactions which are not subject to the limitation described in
"Limitation on Sale and Lease-Back Transactions" below), would not exceed 15% of
the Consolidated Net Tangible Assets of the Company.
Such limitation will not apply to, and there shall be excluded in computing
such Indebtedness for purposes of this restriction, certain permitted Liens
including (a) Liens existing as of the date of the issuance of Senior Securities
of any Series, (b) Liens on property or assets of, or any shares of stock or
securing Indebtedness of, any corporation existing at the time such corporation
becomes a Consolidated Subsidiary, (c) Liens on property or assets or shares of
stock or securing Indebtedness existing at the time of acquisition (including
acquisition through merger or consolidation) and certain Liens to secure
Indebtedness incurred prior to, at the time of or within 180 days after the
later of the completion of the acquisition of, or the completion of the
construction of and commencement of operation of, any such property, for the
purpose of financing all or any part of the purchase price or construction cost
thereof, (d) Liens to secure certain development, operation, construction,
alteration, repair or improvement costs, (e) Liens in favor of, or which secure
Indebtedness owing to, the Company or a Consolidated Subsidiary, (f) Liens in
connection with government contracts, including the assignment of moneys due or
to come due thereon, (g) certain Liens in connection with legal proceedings to
the extent such proceedings are being contested in good faith, (h) certain Liens
arising in the ordinary course of business and not in connection with the
borrowing of money such as mechanics', materialmans', carriers' or other similar
Liens, (i) Liens on property securing obligations issued by a domestic
governmental issuer to finance the cost of acquisition or construction of such
property, and (j) extensions, substitutions, replacements or renewals of the
foregoing if the principal amount of the indebtedness secured thereby is not
increased and is not secured by any additional assets. (Section 3.5 of the
Senior Indenture)
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<PAGE> 10
Limitation on Sale and Lease-Back Transactions
The Senior Indenture provides that, so long as any of the Senior Securities
of a Series remain outstanding, unless the terms of any Series of Senior
Securities provide otherwise, neither the Company nor any Consolidated
Subsidiary may enter into any arrangement with any person (other than the
Company) providing for the leasing by the Company or a Consolidated Subsidiary
of any Principal Property (except for temporary leases for a term of not more
than three years), which Principal Property has been or is to be sold or
transferred more than 120 days after such Principal Property has been owned by
the Company or such Consolidated Subsidiary and completion of construction and
commencement of full operation thereof, by the Company or a Consolidated
Subsidiary to such person (herein referred as a "Sale and Lease-Back
Transaction"). (Sections 3.5 and 3.6 of the Senior Indenture)
Such limitation will not apply to any Sale and Lease-Back Transaction if
(a) the net proceeds to the Company or such Consolidated Subsidiary from the
sale or transfer equal or exceed the fair value (as determined by the Board of
Directors of the Company) of the Principal Property so leased, (b) the Company
or such Consolidated Subsidiary could incur Indebtedness secured by a Lien on
the Principal Property to be leased pursuant to "Limitation on Liens" above in
an amount equal to the Attributable Debt with respect to such Sale and
Lease-Back Transaction without equally and ratably securing the Senior
Securities or (c) the Company, within 120 days after the effective date of any
such Sale and Lease-Back Transaction, applies an amount equal to the fair value
(as determined by the Board of Directors of the Company) of the Principal
Property so leased to (x) the retirement of Funded Debt (including Debt
Securities) of the Company or (y) the acquisition of additional real property.
(Section 3.6 of the Senior Indenture)
Certain Definitions
The term "Attributable Debt," in respect of the Sale and Lease-Back
Transactions described above, is defined to mean as of any particular time, the
present value, discounted at the Composite Rate, of the obligation of a lessee
for rental payments during the remaining term of any lease (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended). Sale and Lease-Back Transactions with respect to facilities financed
with certain tax exempt securities are excepted from the definition. (Section
1.1 of the Senior Indenture)
The term "Consolidated Net Tangible Assets" is defined to mean the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current liabilities
(excluding any thereof constituting Funded Debt by reason of being extendible or
renewable), and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set forth on the
books and records of the Company and its Consolidated Subsidiaries and computed
in accordance with generally accepted accounting principles. (Section 1.1 of the
Senior Indenture)
The term "Consolidated Subsidiary" is defined to mean a subsidiary of the
Company the accounts of which are consolidated with those of the Company in
accordance with generally accepted accounting principles. (Section 1.1 of the
Senior Indenture)
The term "Funded Debt" is defined to mean all indebtedness for the
repayment of money borrowed, whether or not evidenced by a bond, debenture, note
or similar instrument or agreement, having a final maturity of more than 12
months after the date of its creation or having a final maturity of less than 12
months after the date of its creation but by its terms being renewable or
extendible beyond 12 months after such date at the option of the borrower
(excluding obligations under any capital leases). For the purpose of determining
"Funded Debt," there shall be excluded any particular indebtedness if, on or
prior to the final maturity thereof, there shall have been deposited with the
proper depositary in trust the necessary funds for the payment, redemption or
satisfaction of such indebtedness. (Section 1.1 of the Senior Indenture)
The term "Principal Property" is defined to mean, as of any date, any
building, structure or other facility together with the land upon which it is
erected and fixtures comprising a part thereof, used primarily for
manufacturing, processing or production (other than any pollution control
facility), in each case located in the United States, and owned or leased or to
be owned or leased by the Company or any Consolidated Subsidiary,
9
<PAGE> 11
and in each case the net book value of which as of such date exceeds 2% of the
Consolidated Net Tangible Assets of the Company as shown on the consolidated
balance sheet contained in the latest filing of the Company with the Commission,
other than any such land, building, structure or other facility or portion
thereof which, in the opinion of the Board of Directors of the Company, is not
of material importance to the total business conducted by the Company and its
Consolidated Subsidiaries, considered as one enterprise.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordination. The Subordinated Securities will be subordinate and junior
in right of payment, to the extent set forth in the Subordinated Indenture, to
all Senior Indebtedness (as defined below) of the Company. If the Company should
default in the payment of any principal of or premium or interest on any Senior
Indebtedness when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration of acceleration or otherwise, then,
upon written notice of such default to the Company by the holders of such Senior
Indebtedness or any trustee therefor and subject to certain rights of the
Company to dispute such default and subject to proper notification of the
Trustee, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) will be made or agreed to be made for
principal of, premium, if any, or interest, if any, on the Subordinated
Securities, or in respect of any redemption, retirement, purchase or other
acquisition of the Subordinated Securities other than those made in capital
stock of the Company (or cash in lieu of fractional shares thereof). (Sections
14.1, 14.4 and 14.5 of the Subordinated Indenture)
The term "Senior Indebtedness" is defined to mean indebtedness or
obligations (other than the Subordinated Debt Securities) of, or guaranteed or
assumed by, the Company for borrowed money which is evidenced by (i) bonds,
debentures, notes, or other similar instruments, or (ii) capital leases, whether
outstanding at the date of the Subordinated Indenture or subsequently incurred,
unless the terms of such indebtedness provide that such indebtedness is not
senior in right of payment to the Subordinated Debt Securities, and amendments,
renewals, extensions, modifications and refinancings of any such indebtedness or
obligations. (Section 1.1 of the Subordinated Indenture)
If (i) without the consent of the Company a court shall enter an order for
relief with respect to the Company under the United States federal bankruptcy
laws or a judgment, order or decree adjudging the Company a bankrupt or
insolvent, or enter an order for relief for reorganization, arrangement,
adjustment or composition of or in respect of the Company under the United
States federal or state bankruptcy or insolvency laws or (ii) the Company shall
institute proceedings for the entry of an order for relief with respect to the
Company under the United States federal bankruptcy laws or for an adjudication
of insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or similar relief under any applicable
law, or shall consent to the filing of such petition or to the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator or similar
official in respect of the Company or of substantially all of its property, or
the Company shall make a general assignment for the benefit of creditors, then
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) will first be paid in full before any
payment or distribution, whether in cash, securities or other property, is made
on account of the principal of, or interest, if any, on the Subordinated
Securities. In such event, any payment or distribution on account of the
principal of, or interest, if any, on the Subordinated Securities, whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Subordinated Securities, to the
payment of all Senior Indebtedness then outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for the subordination provisions) be payable or deliverable
in respect of the Subordinated Securities will be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) has
been paid in full. If any payment or distribution on account of the principal
of, or interest, if any, on the Subordinated Securities of any character,
whether in cash, securities or other property (other than securities of the
Company or any other
10
<PAGE> 12
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Subordinated Securities, to the payment of all
Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by a holder of any Subordinated Securities in contravention of any of
the terms of the Subordinated Indenture and before all the Senior Indebtedness
shall have been paid in full, such payment or distribution of securities will be
received in trust for the benefit of, and will be paid over or delivered and
transferred to, the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all such Senior Indebtedness in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness, the holders of Subordinated Securities, together with the holders
of any obligations of the Company ranking on a parity with the Subordinated
Securities, will be entitled to be repaid from the remaining assets of the
Company the amounts at that time due and owing on account of unpaid principal of
or any interest on the Subordinated Securities and such other obligations before
any payment or other distribution, whether in cash, property or otherwise, shall
be made on account of any capital stock or obligations of the Company ranking
junior to the Subordinated Securities and such other obligations. (Section 14.1
of the Subordinated Indenture)
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness may receive more, ratably, than holders
of the Subordinated Securities. In addition, other creditors of the Company who
are not holders of Subordinated Securities or holders of Senior Indebtedness may
recover less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than holders of Subordinated Securities. Such subordination will not
prevent the occurrence of an Event of Default or limit the right of acceleration
in respect of the Subordinated Securities.
EVENTS OF DEFAULT
An Event of Default with respect to the Debt Securities of any Series is
defined in each Indenture as: (i) default in the payment of any installment of
interest upon any of the Debt Securities of such Series as and when the same
shall become due and payable, and continuance of such default for a period of 30
days; (ii) default in the payment of all or any part of the principal of any of
the Debt Securities of such Series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise;
(iii) default in the performance, or breach, of any other covenant or warranty
of the Company contained in the Debt Securities of such Series or set forth in
the Indenture (other than a covenant or warranty included in the Indenture
solely for the benefit of a Series of Debt Securities other than that Series)
and continuance of such default or breach for a period of 90 days after due
notice by the applicable Trustee or by the holders of at least 25% in principal
amount of the Outstanding Securities of that Series; or (iv) certain events of
bankruptcy, insolvency or reorganization of the Company. (Section 5.1)
Additional Events of Default may be added for the benefit of holders of certain
Series of Debt Securities which, if added, will be described in the Prospectus
Supplement relating to such Debt Securities. The Indentures provide that the
Trustee shall notify the holders of Debt Securities of each Series of any
continuing default known to the Trustee which has occurred with respect to that
Series within 90 days after the occurrence thereof. The Indentures provide that
notwithstanding the foregoing, except in the case of default in the payment of
the principal of or interest on any of the Debt Securities of such Series the
Trustee may withhold such notice if the Trustee in good faith determines that
the withholding of such notice is in the interests of the holders of Debt
Securities of such Series. (Section 6.5)
The Indentures provide that if an Event of Default with respect to any
Series of Debt Securities shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in aggregate principal amount of
Debt Securities of that Series then outstanding may declare the principal amount
of all Debt Securities of that Series to be due and payable immediately, but
upon certain conditions such declaration may be annulled. (Section 5.1) Any past
defaults and the consequences thereof (except a default in the payment of
principal of or interest on Debt Securities of that Series) may be waived by the
holders of a majority in principal amount of the Debt Securities of that Series
then outstanding. (Section 5.9) The Senior Indenture
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<PAGE> 13
also permits the Company to omit compliance with certain covenants in such
Indenture with respect to Senior Securities of any Series upon waiver by the
holders of a majority in principal amount of the Senior Securities of such
Series then outstanding. (Section 3.7)
Subject to the provisions of each Indenture relating to the duties of each
Trustee, in case an Event of Default with respect to any Series of Debt
Securities shall occur and be continuing, neither Trustee shall be under any
obligation to exercise any of the trusts or powers vested in it by either
Indenture at the request or direction of any of the holders of that Series,
unless such holders shall have offered to such Trustee reasonable security or
indemnity. (Section 6.1 and 6.2) The holders of a majority in aggregate
principal amount of the Debt Securities of each Series affected and then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee under the
applicable Indenture or exercising any trust or power conferred on the Trustee
with respect to the Debt Securities of that Series; provided that the Trustee
may refuse to follow any direction which is in conflict with any law or such
Indenture and subject to certain other limitations. (Section 5.8)
No holder of any Debt Security of any Series will have any right by virtue
or by availing of any provision of the applicable Indenture to institute any
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to such Indenture or for any remedy thereunder, unless such holder
shall have previously given the applicable Trustee written notice of an Event of
Default with respect to Debt Securities of that Series and unless also the
holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities of that Series shall have made written request, and offered
reasonable indemnity, to the applicable Trustee to institute such proceeding as
trustee and the applicable Trustee shall have failed to institute such
proceeding within 60 days after its receipt of such request, and the applicable
Trustee shall not have received from the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of that Series a direction
inconsistent with such request. (Section 5.5) However, the right of a holder of
any Debt Security to receive payment of the principal of and any interest on
such Debt Security on or after the due dates expressed in such Debt Security, or
to institute suit for the enforcement of any such payment on or after such
dates, shall not be impaired or affected without the consent of such holder.
(Section 5.6)
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Each Indenture provides that the Company may consolidate with, or sell,
convey or lease all or substantially all of its assets to, or merge with or
into, any other corporation, if (i) either the Company is the continuing
corporation, or the successor corporation is a domestic corporation and
expressly assumes the due and punctual payment of the principal of and interest
on all the Debt Securities outstanding under the Indenture according to their
tenor and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed or observed by the
Company and (ii) immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing. (Section 9.1)
SATISFACTION AND DISCHARGE OF INDENTURES
Each Indenture with respect to any Series (except for certain specified
surviving obligations including, among other things, the Company's obligation to
pay the principal of and interest on the Debt Securities of such Series) will be
discharged and cancelled upon the satisfaction of certain conditions, including
the payment of all principal of and interest on all the Debt Securities of such
Series or the deposit with the applicable Trustee of cash or appropriate
Government Obligations or a combination thereof sufficient for such payment or
redemption in accordance with the Indenture and the terms of the Debt Securities
of such Series. (Section 10.1)
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting the Company and the
applicable Trustee, with the consent of the holders of not less than a majority
in aggregate principal amount of the Debt Securities of each Series at
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<PAGE> 14
the time outstanding under such Indenture, to execute supplemental indentures
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, such Indenture or any supplemental indenture with respect to the
Debt Securities of such Series or modifying in any manner the rights of the
holders of the Debt Securities of such Series; provided that no such
supplemental indenture may (i) extend the stated maturity of the principal of
any Debt Security, or reduce the principal amount thereof or any premium
thereon, or reduce the rate or extend the time of payment of any interest
thereon, or reduce any amount payable on redemption thereof or change the
currency in which the principal thereof (including any amount with respect to
original issue discount) or interest thereon is payable or reduce the amount of
original issue discount security payable upon acceleration or provable in
bankruptcy or alter certain provisions of the Indenture relating to Debt
Securities not denominated in U.S. dollars, or impair or affect the right of any
holder of Debt Securities to institute suit for payment thereof or, if the Debt
Securities provide therefor, any right of repayment at the option of the holders
of the Debt Securities, without the consent of the holder of each Debt Security
so affected, (ii) reduce the aforesaid percentage of Debt Securities of such
Series, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all Debt
Securities of such Series so affected or (iii) with respect to the Subordinated
Indenture, modify the provisions relating to the subordination of the
Subordinated Securities in a manner materially adverse to the Holders of the
Subordinated Securities. (Section 8.2) Additionally, in certain prescribed
instances, the Company and the Trustee may execute supplemental indentures
without the consent of the holders of Debt Securities. (Section 8.1)
The Subordinated Indenture may not be amended to alter the subordination of
any outstanding Subordinated Securities without the consent of each holder of
Senior Indebtedness then outstanding that would be materially adversely affected
thereby. (Section 8.6 of the Subordinated Indenture)
DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides, if such provision is made applicable to the Debt
Securities of any Series, that the Company may elect either (a) to terminate
(and be deemed to have satisfied) all its obligations with respect to such Debt
Securities (except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities,
to compensate and indemnify the Trustee and to punctually pay or cause to be
paid the principal of, and interest on, all Debt Securities of such Series when
due) ("defeasance") or (b) with respect to the Senior Securities, to be released
from its obligations with respect to such Senior Securities under Section 3.5
and 3.6 of the Indenture (being the restrictions described above under
"Limitations on Liens" and "Limitations on Sale and Leaseback Transactions")
("covenant defeasance"), upon the deposit with the Trustee, in trust for such
purpose, of money and/or Government Obligations which through the payment of
principal and interest in accordance with their terms will provide money, in an
amount sufficient (in the opinion of a nationally recognized firm of independent
public accountants) to pay the principal of and interest, if any, on the
outstanding Debt Securities of such Series, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor. Such a trust
may be established only if, among other things, the Company has delivered to the
Trustee an opinion of counsel (as specified in the Indenture) with regard to
certain matters, including an opinion to the effect that the Holders of such
Debt Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and discharge and will be subject to
federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and defeasance or covenant
defeasance, as the case may be, had not occurred. The Prospectus Supplement may
further describe these or other provisions, if any, permitting defeasance or
covenant defeasance with respect to the Debt Securities of any Series. (Section
10.1)
APPLICABLE LAW
The Debt Securities and the Indentures will be governed by, and construed
in accordance with, the laws of the State of New York. (Section 11.8)
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<PAGE> 15
CONCERNING THE TRUSTEE
The Senior Trustee may provide various commercial banking services to the
Company from time to time.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers (through a
specific bidding or auction process or otherwise).
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent involved in the offer or sale of
the Offered Securities will be named, and any commissions payable by the Company
to such agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act, of the Debt
Securities so offered and sold. Agents may be entitled under agreements which
may be entered into with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may be
customers of, engaged in transactions with or perform services for the Company
in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, if any, will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales of
Offered Securities. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and such
underwriters or their affiliates may be customers of, engage in transactions
with, or perform services for the Company in the ordinary course of business.
If a dealer is utilized in the sale of Offered Securities, the Company will
sell such Debt Securities to the dealer, as principal. The dealer may then
resell such Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale. Dealers may be entitled, under agreements
which may be entered into with the Company, to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act, and
such dealers or their affiliates may be customers of, extend credit to or engage
in transactions with, or perform services for the Company in the ordinary course
of business. The name of any dealer and the terms of the transactions will be
set forth in the Prospectus Supplement relating thereto.
Offers to purchase Debt Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional investors
or others. The terms of any such sales, including the terms of any bidding or
auction process, if utilized, will be described in the Prospectus Supplement
relating thereto.
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is delivered are set forth in the Prospectus Supplement.
LEGAL MATTERS
The validity of the issuance of the Debt Securities offered hereby will be
passed upon for the Company by Kirkland & Ellis, special counsel to the Company.
Certain legal matters in connection with the Debt Securities offered hereby will
be passed upon for the underwriters, if any, by Sidley & Austin, Chicago,
Illinois.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K for the year ended May 29, 1994, have been so
incorporated in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
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<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee................ $103,448
Rating Agency fees................................................. 120,000
Trustees' fees..................................................... 10,000
Legal fees and expenses............................................ 50,000
Accounting fees.................................................... 3,000
Printing and engraving............................................. 3,000
Blue Sky fees and expenses (including legal fees and
disbursements)................................................... 10,000
Miscellaneous...................................................... 10,000
--------
$309,448
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") gives corporations the power to indemnify directors and officers
under certain circumstances. The Company's Restated Certificate of Incorporation
provides for the indemnification of directors and officers of the Company to the
fullest extent permitted by Section 145.
Article XIII of the By-laws of the Registrant provides for the
indemnification of officers, directors and others against losses as a result of
acting on behalf of the Registrant.
The Registrant also maintains directors and officers liability and
corporate reimbursement insurance which provides for coverage against loss
arising from claims made against directors and officers in their capacity as
such. The general scope of coverage is any breach of duty, neglect, error,
misstatement, misleading statement or omission. Such policy does not exclude
liabilities under the Securities Act of 1933.
ITEM 16. EXHIBITS
The exhibits listed on the Exhibit Index, page E-I, are filed as part of
the Registration Statement.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
THE COMPANY HEREBY UNDERTAKES THAT:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under
II-1
<PAGE> 17
the Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) (a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(4) The undersigned registrant hereby undertakes with respect to the
Subordinated Securities to file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a) of section 310 of the
Trust Indenture Act ("Act") in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the Act.
II-2
<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the Village of Franklin Park, State of Illinois, on
the 8th day of March, 1995.
DEAN FOODS COMPANY
By: /s/ HOWARD M. DEAN
------------------------------------
Howard M. Dean
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the registration statement has been signed by the following persons in
the capacities indicated as of the 8th day of March, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
/s/ HOWARD M. DEAN Chairman of the Board and Chief Executive
- --------------------------------------------- Officer and Director
Howard M. Dean
/s/ THOMAS L. ROSE President and Chief Operating Officer and
- --------------------------------------------- Director
Thomas L. Rose
/s/ DALE I. HECOX Treasurer (Principal Accounting and
- --------------------------------------------- Financial Officer)
Dale I. Hecox
/s/ LEWIS M. COLLENS* Director
- ---------------------------------------------
Lewis M. Collens
/s/ PAULA H. CROWN* Director
- ---------------------------------------------
Paula H. Crown
</TABLE>
II-3
<PAGE> 19
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
/s/ WILLIAM D. FISCHER* Director
- ---------------------------------------------
William D. Fischer
/s/ JOHN P. FRAZEE, JR.* Director
- ---------------------------------------------
John P. Frazee, Jr.
/s/ BERT A. GETZ* Director
- ---------------------------------------------
Bert A. Getz
/s/ JOHN S. LLEWELLYN, JR.* Director
- ---------------------------------------------
John S. Llewellyn, Jr.
/s/ ANDREW J. MCKENNA* Director
- ---------------------------------------------
Andrew J. McKenna
/s/ THOMAS A. RAVENCROFT Senior Vice President and Director
- ---------------------------------------------
Thomas A. Ravencroft
/s/ ALEXANDER J. VOGL* Director
- ---------------------------------------------
Alexander J. Vogl
*By: HOWARD M. DEAN
- ---------------------------------------------
Attorney-In-Fact
</TABLE>
II-4
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER PAGE NO.
- ------- --------
<S> <C> <C>
1.1 Form of Underwriting Agreement Basic Provisions for Senior Securities (to
be filed as an Exhibit to a Current Report on Form 8-K at the time of an
offering of securities)
1.2 Form of Underwriting Agreement Basic Provisions for Subordinated
Securities (to be filed as an Exhibit to a Current Report on Form 8-K at
the time of an offering of securities)
4.1* Form of Senior Indenture dated as of January 15, 1995, between the Company
and Bank of America Illinois, as Trustee
4.2* Form of Senior Debt Securities
4.3* Form of Subordinated Indenture
4.4* Form of Subordinated Debt Securities
5.* Opinion of Kirkland & Ellis as to validity of issuance
12* Calculation of Ratio of Earnings to Fixed Charges
23.1** Consent of Price Waterhouse LLP
23.2* The consent of Kirkland & Ellis is included in their opinion filed as
Exhibit 5 to this Registration Statement
24* Power of Attorney (contained on page II-3)
25.1* Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939
of Bank of America Illinois (Senior Securities)
25.2 Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939
(Subordinated Securities) (to be filed as an Exhibit to a Current Report
on Form 8-K at the time of an offering of securities)
</TABLE>
- -------------------------
* Previously filed
** Filed herewith
E-1
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated June 29, 1994, which appears on page 30 of the 1994 Annual Report to
Shareholders of Dean Foods Company, which is incorporated by reference in the
Dean Foods Company's Annual Report on Form 10-K for the year ended May 29,
1994. We also consent to the incorporation by reference of our report on the
Financial Statement Schedules, which appears on page 16 of such Annual Report
on Form 10-K. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
------------------------
PRICE WATERHOUSE LLP
March 8, 1995
